Vaaulu (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the visa of a New Zealand citizen, Mr. Vaaulu. Mr. Vaaulu arrived in Australia in 2013 and holds a Special Category (Temporary) (Class TY) Subclass 444 visa. The cancellation was based on the ground that his presence in Australia may be a risk to the safety of the Australian community or a segment of the community, pursuant to section 116(1)(e)(ii) of the *Migration Act 1958* (Cth). This arose from his conviction for offences committed on 7 May 2017, including entering a dwelling with intent, assault occasioning bodily harm, common assault, wilful damage, and dangerous operation of a vehicle, for which he received a suspended sentence.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(e)(ii) of the *Migration Act* was made out. Specifically, the Tribunal had to consider if Mr. Vaaulu's presence in Australia posed, or might pose, a risk to the health, safety, or good order of the Australian community or a segment of it, or to the health or safety of individuals. The Tribunal also had to consider whether, if the ground was made out, the visa should be cancelled, having regard to all relevant circumstances.

The Tribunal reasoned that while the power to cancel a visa can arise on the possibility of past events creating a risk, the specific circumstances of this case did not enliven the cancellation provisions. The offences committed by Mr. Vaaulu were his first and only convictions, and the victim was his wife. The Tribunal accepted the consistent and compelling evidence from Mr. Vaaulu and his wife regarding the incident, which involved Mr. Vaaulu discovering his intoxicated wife at another man's residence. In a distressed state, he confronted them, and an altercation occurred where he grabbed his wife and struck her with an open hand. The Tribunal concluded that the intention of the cancellation provisions was not to be applied in these circumstances and that the ground for cancellation was not satisfied.

Consequently, the Tribunal set aside the decision to cancel Mr. Vaaulu's Subclass 444 visa and substituted a decision not to cancel it.